[co-author: Emma Powling, Law Clerk]
On March 7, 2020, New York State Governor Andrew Cuomo issued Executive Order No. 202, declaring a statewide disaster emergency in response to the Covid-19 pandemic. This Executive Order followed just a few days after legislation was passed and enacted into law (Chapter 23 of the Laws of 2020) to expand the Governor’s emergency powers by authorizing him to issue directives related to the pandemic, in addition to his existing authority to suspend laws and regulations during emergencies (“Chapter 23”).
At the time, expanding the Governor’s emergency powers was seen as necessary for the state to respond quickly and effectively to this new public health crisis. Since then, pursuant to Sections 28 and 29-a of the Executive Law, Governor Cuomo has issued a series of suspensions and directives building on Executive Order No. 202, covering issues such as mask requirements, lockdowns, limits on gatherings, and vaccine distribution, among other things.
This expansion of Governor Cuomo’s emergency powers was initially set to expire on April 30, 2021, but new legislation was adopted and enacted in early March 2021 (Chapter 71 of the Laws of 2021) amending and repealing certain provisions of Chapter 23 (“Chapter 71”). While Chapter 71 prohibits new directives related to the pandemic, it preserves much of the Governor’s power by allowing him to extend and modify previously issued directives, subject to some additional procedural safeguards.
Governor Cuomo has used his continuing power to extend or modify pandemic-related directives several times since the new legislation was signed into law and went into effect on March 8, 2021. Executive Order 202.101, for instance, modified several previously issued directives, including relaxed restrictions on professional sports events and the operation of gyms and fitness centers, among other things.
Even though the Governor has the continued power to modify or extend previously issued directives, it is unclear whether he will do so for all of the pandemic-related restrictions that remain outstanding. At the moment, the key takeaway for municipalities is to be ready for the potential modification or expiration of directives that have been in place for many months, even if there is no specific deadline yet or any desire to return to pre-pandemic regulations.
Municipalities should consider auditing all of the applicable pandemic suspensions and directives that the Governor has issued over the last year, both to identify any areas that are out of compliance and to begin planning for changes and expirations.
